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When There Is No Ham in the Ham Sandwich

Here is a post that illustrates, as few other things could, the need to read our political and historical narratives in a biblical way. In this post, the author, Jada Thacker, argues that the Constitution was not about limited government at all, and that Tea Partiers and their ilk (ilk is just a great word, as I am sure you agree) are simply demonstrating their thundering historical ignorance. Anyone who attempts to appeal to our founding principles of limited government is a simpleton. That original Gadsden flag was not a rattlesnake ready to bite a tyrant’s shin, but rather was a picture of the long-prophesied reptile of peace, come to lick the wounds and hurt feelings caused by a dearth of affordable housing.

But here is the missing narrative. Thacker, the author of this piece, clearly knows the historical details, dates, and such — but he doesn’t know the meaning of the story. Reading him is like watching a movie by an obscure Chinese director who made a film about some incomprehensible war in the fifth century B.C. between Kan Chiang and Mo Yeh, without any subtitles. Depending on the director’s research and abilities, we would know everything there was to know about that war — uniforms, tactics, weapons, etc. We would know everything except what it was about. Thacker knows his onions when it comes to the history of constitutional debate, except for the whole point. Other than that, he has it down.

So here is the real point, in bare bones form. The Articles of Confederation established a limited form of central government, unfortunately too limited to perform certain essential functions of a central government. If we wanted a central government at all, we needed a bit more than what we had. The Constitutional Convention in Philadelphia approved a new Constitution in 1787, which was then presented to the states for ratification. After 9 states ratified, the Constitution took effect in 1788, when New Hampshire signed on. But an essential part of the ongoing debate throughout the entire process of ratification was the obvious need for some additional and explicit limiting principles.

The Federalists thought we were already good; the anti-Federalists wanted more protections. The Federalists lost that debate. Now looking at where we have actually wound up, buried under a rock pile of unlimited government, it appears that even the anti-Federalists were not nearly cynical enough — they were a gaggle of Pollyannas compared to what was needed. We needed many more men glaring at the whole thing, men with a disposition like Savonarola with stomach troubles.

So Thacker is exactly right that the Preamble to the Constitution, and Article I, and the other stuff in there like it, left a bunch of unlocked constitutional doors that would have gotten us unbridled statism long before we actually got it. That is why it was so controversial at the time, and that is why the debate (as represented by the mere existence of the Federalist and anti-Federalist papers) was all about how best to guarantee the protections afforded by limited government. That is what the central debate was about — how best to ensure limited government. The classic center of the debate was how — to paraphrase Madison — we could give the government enough power to govern the people and enough restrictions to compel it to govern itself.

Both sides agreed that this was a civic good. The Federalists were less cynical than the anti-Federalists, and both parties less cynical than they should have been, but their differences concerned how much rope was necessary to tie down the giant. They all agreed that tying down the giant was a good thing. And everybody was wrong about how much rope it would take.

For Thacker to act as though this was not the issue of that day is like reading a New Testament historian who thought that the Council of Jerusalem had nothing to do with circumcision, or a literary critic who thought that the prince of Denmark was a side character in Hamlet, or a short order deli sandwich maker who consistently leaves the ham out of the ham sandwich.

After the Constitution took effect in 1788, after New Hampshire ratified, one of the first things that happened was that twelve amendments (shown to be necessary by the ratification debate in all the states) were presented to the states for approval. Ten of these were eventually approved by the states, and they finally took effect when Virginia ratified them in 1791. This extraordinary process of immediate amendment showed the wariness that generation had toward centralized government, a wariness we would do well to recover.

Now here is the import of this narrative. If you take the Constitution as originally presented, the one that contains the heart of Thacker’s arguments, and allowed no amendments to it, that Constitution would never have been ratified. The Constitution as first presented was a pure Federalist document, and it richly deserved all the opposition it generated. The anti-Federalists, men like Patrick Henry, were quite right to smell a rat. Their opposition was cogent enough, and effective enough, to require the Bill of Rights be attached to the Constitution. That attachment made it a modified anti-Federalist document — not perfect, but serviceable and worthy of our respect and support. But even in that serviceable condition, the internal tensions were not removed (and power-hungry men never go far away, and they always have a genius for creative hermeneutics), and so a great civil war broke out within about seventy years over these very same issues.

So the rat-like smell is not gone, not by any stretch. We need to deal with this because the 21st century, just like the 18th century, will always have plenty of men who are ever willing to advance clever arguments in favor of slavery to the state. Object to a drone strike on citizen Smith, an individual? You will be accused of being in thrall to Enlightment individualism. Object to widow Smith having half her income taken away by the machinations of the central bank? You will be accused of perpetuating tired left/right dichotomies. Object to men with guns and letters on their jackets raiding small businesses in search of cash? You will be told that Jeremiah told the Israelites to seek the peace of Babylon.

In short, there will always be men like Thacker who believe that those who do not wish to crawl down into the maw of the state do not understand the nature of their own best interest. But they are probably reluctant — and this is merely a suggestion — because of that time they wore a tri-cornered hat to a rally held by some funny people, the one Glenn Beck spoke at.

Seriously, if you don’t understand the debate about limited government, a debate that has spanned our entire history as a people, down to the present, then you don’t understand our history at all. And the best thing to do, if you are in that sad plight, is to try to talk that Chinese director into putting in some subtitles.

12 thoughts on “When There Is No Ham in the Ham Sandwich”

Article I, Section 8 is possibly the most abused section of the Constitution. Madison himself addressed this wrong interpretation very early on in at least two occasions.

1) In a letter to James Robinson he says: With respect to the words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators. If the words obtained so readily a place in the “Articles of Confederation,” and received so little notice in their admission into the present Constitution, and retained for so long a time a silent place in both, the fairest explanation is, that the words, in the alternative of meaning nothing or meaning everything, had the former meaning taken for granted.”

2) In a letter to Edmund Pendleton: If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated is copied from the old Articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers.”

So what are these specified powers that Madison, who wrote this section, is referring to? They are the ones listed in that section and that is it. The General Welfare is not some nebulous statement that can mean whatever Congress wants it to mean. It’s meaning is enumerated in the list of powers that follow (i.e. Coin money, establish Post Offices, to provide and maintain a Navy).

Oh, and I forgot the most prescient quote by Madison with regards to the “General Welfare” clause. And remember this was the man who wrote the Constitution.

“If Congress can employ money indefinitely to the general welfare,
and are the sole and supreme judges of the general welfare,
they may take the care of religion into their own hands;
they may appoint teachers in every State, county and parish
and pay them out of their public treasury;
they may take into their own hands the education of children,
establishing in like manner schools throughout the Union;
they may assume the provision of the poor;
they may undertake the regulation of all roads other than post-roads;
in short, every thing, from the highest object of state legislation
down to the most minute object of police,
would be thrown under the power of Congress…. Were the power
of Congress to be established in the latitude contended for,
it would subvert the very foundations, and transmute the very nature
of the limited Government established by the people of America.”

I would love to see that Chinese movie with subtitles. Some of the back-translation is hilarious. Like, when watching a Chinese copy of Star Wars, the “Jedi council” was translated as “the Presbyterian church”.

Pastor Douglas Wilson takes issue with my article “The Right’s Made-up ‘Constitution,” whose main point is that “the Constitution was never intended to ‘provide for limited government,’ and furthermore it did not do so.”

I am an advocate for limited government. But I do think those who continue to insist, against all evidence to the contrary, that the federal government was founded as “limited government” are indulging, at best, in wishful thinking. I do not necessarily object to wishful thinking, but only to its substitution for historical fact.

Federalists wrote the Constitution, and anti-Federalists opposed adopting it. These are facts with which Pastor Wilson and I have no disagreement.

“Thacker, the author of this piece,” Pastor Wilson says, “clearly knows the historical details, dates, and such — but he doesn’t know the meaning of the story.” That story, he says, goes like this:

“But an essential part of the ongoing debate throughout the entire process of ratification was the obvious need for some additional and explicit limiting principles. The Federalists thought we were already good; the anti-Federalists wanted more protections. The Federalists lost that debate.”

The Federalists lost the debate on ratification?

Obviously, the Federalists won the debate. Had they lost, the Constitution would not now exist in any form. The ratification debate raged over the vast power of the proposed Constitution, not over the “explicit limiting principles” of an as-yet unwritten Bill of Rights. The promised Bill of Rights was the political ransom the Federalists had to pay to get their pet Constitution signed into law. So the Federalists won the argument – but at a price. It was politics.

But even the belated addition of the Bill of Rights still did not achieve “limited government.”

The Bill of Rights, for example, failed to prevent the Federalist-controlled government from torturing and sentencing tax protesters to death under George Washington; it failed to prevent the jailing of peacefully dissenting citizens and journalists under Federalist President John Adams; it failed to prevent Thomas Jefferson from prosecuting a foreign war without a Congressional declaration.

Far worse, the Bill of Rights failed utterly to secure the right to vote for the majority of the nation’s population. My article cites a litany of other government abuses considered “constitutional” under the direct authority of the Founders.

The democratically unrestrained power of government under the Constitution is the meaning of the story. It’s just not Pastor Wilson’s story.

If any of these outrages were committed today (and some are), I have little doubt Pastor Wilson would be the first to denounce them as an example of unlimited government running dangerously out of control. Would he similarly condemn the same actions of government under the Founding “Fathers?”

Last year, in “A Sermon to the Governor and Legislature of Idaho,” Pastor Wilson said, “Government must be limited because, if government is not limited, government is going to attempt to become as God.” I agree.

But the federal government, from George Washington to Barack Obama, has on many occasions done just that – despite the Constitution, and sometimes under the cynical guise of its defense. Unlimited government, unfortunately, is not a recent development, but an original sin.

In the same sermon, Pastor Wilson also said, “Limited government is the kind of government the Bible requires.” I do not claim to speak for the Bible, but I do believe limited government is the kind of government the people require. And I believe that democracy represents the only power on Earth that has a prayer of a chance to achieve that elusive end.

I think the larger confusion is over what exactly “limited government” is supposed to be. If it is believing that the government ought to have limits, then everyone believes in it. Liberals typically believe that the government shouldn’t have the power to outlaw sodomy, or to shut down Fox News. If limited government is acceding to the bill of rights specifically, then I think it may be a little too rigid of a concept.

“Limited government” in this day and age functions as little more than a conservative buzzword to fire the base up and get them to open their wallets again.

It is certainly progress if you people are discovering the Bill of Rights. The second amendment to the U.S. Constitution guarantees the right to bear arms. The states of the old Confederacy did not in general respect this right for one class of their citizens, namely African-Americans (in some cases they afforded limited rights to gun ownership to Africans who owned real estate, i.e. not slaves.) John Brown broke into the Harper’s Ferry arsenal with the intention of distributing weapons to the African-American population. Upon receipt of these weapons, these people would have been under no obligation to follow John Brown, but one must strongly suspect there would have been less involuntary servitude going on had the African-American population been armed. Do you folks realize it was wicked for the southern states to deny the right of gun ownership to African-Americans, or are you only faux-Constitutionalists after all? Oh, I almost forgot. . .that awful fourteenth amendment was not yet in place, so they did not HAVE to respect the people’s right to bear arms!